State v. Wilson

• Decision Date: 07 January 1935
• Docket Number: 33141
• Court: Louisiana Supreme Court
• Parties: STATE v. WILSON

158 So. 621

181 La. 61

STATE v. WILSON

No. 33141

Supreme Court of Louisiana

January 7, 1935

Appeal from Twenty-Second District Court, Parish of Washington; C Ellis Ott, Judge.

Jerome Wilson was convicted of murder, and he appeals.

Verdict and sentence annulled, and new trial granted.

M. I Varnado, of Bogalusa, and B. M. Miller, of Covington, for appellant.

G. L Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., C. Sidney Frederick, Dist. Atty., of Covington, and Lessley P. Gardiner, Sp. Asst. to Atty. Gen. (Osceola H. Carter and J. Vol Brock, both of Franklinton, of counsel), for the State.

OPINION

HIGGINS, Justice.

This is an appeal from a verdict of a jury finding the defendant guilty of murder and a sentence by the court condemning him to death by hanging.

Six bills of exceptions were reserved in behalf of the defendant. The first bill was reserved to the trial judge's refusal to grant a motion for a continuance. The relevant facts in connection therewith are as follows:

On July 21, 1934, defendant, a negro man, was arrested for shooting and killing a deputy sheriff, a white man, who had gone to defendant's home in the morning, to arrest him, without a warrant, for failure to comply with the request of the authorities to dip his mule, as required by quarantine regulations under the provisions of Act No. 6 of 1930, designed for the purpose of eradicating ticks. In the affray, the defendant was seriously wounded by being struck by a pistol shot which passed through his right thigh. His brother was mortally wounded as a result of being shot in the stomach, dying in jail that night; another brother was also wounded in the leg; and a third brother was shot through the hand. The whole family, including the mother, father, children, and an uncle, were arrested and confined to jail. The mother, the brother who was shot through the hand, and the defendant were charged as principals, and the rest of the family were held as material witnesses. It appears that there was bitter public feeling against them, which resulted in attempts to lynch them which attempts were frustrated by the vigilance, fortitude, and foresight of the sheriff and his deputies.

On July 24, 1934, the defendant, his brother and mother, were indicted by the grand jury for murder, at Franklinton, the parish seat. The accused were arraigned the same day at about 3 o'clock p. m., and an attorney was appointed to represent them. They pleaded not guilty, and the district judge set the case for trial on Monday, July 30, 1934.

The attorney went to the jail about 6 o'clock the same evening, and the indicted parties expressed a desire to employ other counsel. The attorney appointed by the trial judge that night informed the other attorney at Bogalusa of the wishes of the accused to engage his services. The next morning, July 25, 1934, counsel went to the jail and interviewed his prospective clients and spent the remainder of the day in consultation with them and their friends, in arranging to be employed and to be paid for his services. It appears that two attorneys experienced in the practice of criminal law were employed as special counsel to assist in the prosecution. On the evening of July 27th, the attorney employed to represent the defendants advised his clients that he would need the assistance of additional counsel, and the following day, Saturday, July 28th, another attorney was employed by the accused.

When the case was called for trial on Monday, July 30th, the state requested a severance, which was granted by the court, and elected to try the defendant, Jerome Wilson, first.

Counsel for the defendant filed a motion for a continuance on the grounds that, notwithstanding diligent efforts on their part since their employment, they were unable, under the situation with which they were confronted, to complete the preparation of the proposed defense in behalf of their clients, due to lack of time allowed by the court from the time the accused were arraigned on July 24th and the setting of the trial on July 30th; that, due to the fact that their clients and the members of their family were placed in separate cells in the jail, they were without their co-operation and assistance in securing desired detailed information, particularly as to the locus in quo; that, due to the wound that the defendant received in his extreme upper right thigh, medically termed "upper third," he was suffering and unable to give proper assistance to his attorneys in preparing the defense; and that his health and life might be endangered by subjecting him to a trial at that time.

The jail physician testified that the defendant would not suffer any pain as long as his leg remained immobile, but that he was unable to stand or walk on that member; that he had had fever through the Friday preceding the trial; that he had passed the crisis, but that he had to be watched and had to be lifted or carried from the jail to the courthouse and back; and that he did not think that the mental condition of the accused had been impaired.

In his per curiam, our learned brother below gives as his reasons for overruling a motion for a continuance that the first counsel employed by the accused on July 25th was experienced in the practice of criminal law; that most of the witnesses to the killing, being in jail, were accessible; that the accused did not appear to be in pain and otherwise appeared to be normal; that his health would not likely be jeopardized by him being subjected to trial; and that there was adequate time within which to prepare the defense, since no complicated questions of law or expert testimony were involved in the trial of the case.

In the case of State v. Roberson, 157 La. 974, 103 So. 283, we said:

"Court erred in refusing continuance where counsel were given only four days in which to prepare for defense of two wholly distinct murder prosecutions, of which four days one was a Sunday, and another not available to one of counsel because of a previous engagement already undertaken by him. * * *

"The record shows that the trial began Monday night, September 15th, and continued through Tuesday and Wednesday, September 16th, 17th; that the case was submitted to the jury on Wednesday, September 17th, who brought in their verdict on Thursday, September 18th; that defendants' motion for a new trial was overruled on Saturday, September 20th, on which day also defendants were sentenced, their bills of exception signed, and their appeal taken.

"It is quite true that the matter of granting or refusing a continuance lies in the sound discretion of the trial judge which will not be interfered with unless in extreme cases but in our opinion this is one of those extreme cases. A...